IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 3, 2010
THOMAS T. ALFORD, PETITIONER,
SHASTA COUNTY SUPERIOR COURT, RESPONDENT.
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 11, 2010, the undersigned ordered respondent to file and serve a response to the petition. On August 10, 2010, respondent filed the pending motion to dismiss, arguing that petitioner's habeas petition is second or successive under 28 U.S.C. § 2244(b). Petitioner has filed an opposition to the motion, and respondent has filed a reply.
On March 12, 1996, petitioner pled guilty to second-degree murder with the use of a firearm in the Shasta County Superior Court. The court sentenced petitioner to a state prison term of fifteen years to life plus a ten-year enhancement for the use of a firearm. On December 17, 1996, the California Court of Appeal for the Third Appellate District affirmed the judgment of conviction. Petitioner did not seek review in the California Supreme Court. (Pet. at 2, Resp't's Lodged Docs. 1 & 2.)
Petitioner subsequently filed six petitions seeking habeas corpus relief in state court. Applying the mailbox rule*fn1, on June 15, 2006, petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court which was denied on July 24, 2006. On August 29, 2006, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal which was denied on September 28, 2006. On October 18, 2006, petitioner filed a petition for writ of habeas corpus in the California Supreme Court which was denied on May 9, 2007. On or about November 24, 2008, petitioner filed a second petition for writ of habeas corpus in the Shasta County Superior Court which was denied on December 30, 2008. On January 28, 2009, petitioner filed a second petition for writ of habeas corpus in the California Court of Appeal which was denied on March 12, 2009. Finally, on April 22, 2009, petitioner filed a second petition for writ of habeas corpus in the California Supreme Court which was denied on June 17, 2009. (Resp't's Lodged Docs. 5-16.)
Petitioner previously filed a federal petition for writ of habeas corpus in this court challenging his 1996 conviction and sentence. See No. CIV S-07-1035 GEB DAD P.*fn2 On January 4, 2008, the court dismissed that petition as untimely. On May 26, 2010, petitioner commenced this action by filing the pending petition.
RESPONDENT'S MOTION TO DISMISS
I. Respondent's Motion
Respondent argues that the court should dismiss the pending petition because it is successive under 28 U.S.C. § 2244(b). Specifically, respondent argues that prior to filing the pending petition, petitioner filed a petition challenging the same state court conviction and sentence in this court. See No. CIV S-07-1035 GEB DAD P. Respondent notes that this court dismissed the previously-filed habeas action as untimely. Respondent contends that the pending petition challenging the same conviction and sentence must be dismissed because petitioner has not obtained an order from the Ninth Circuit authorizing him to file a second or successive petition as required. (Resp't's Mot. to Dismiss at 3-4.)
II. Petitioner's Opposition
In opposition to respondent's motion to dismiss, petitioner argues that the habeas petition now pending before this court is not successive because it contains a new claim that he was deprived of his right to DNA testing that was not included in his previously-filed federal petition. (Pet'r's Opp'n to Resp't's Mot. to Dismiss at 1-4.) Petitioner contends that his DNA claim arises from a change in the law in 2006, which purportedly grants him an absolute right to DNA testing. (Id.)
III. Respondent's Reply
In reply, respondent reiterates that the court lacks jurisdiction to consider petitioner's successive petition because he has not obtained the required prior authorization from the Ninth Circuit. (Resp't's Reply at 1-2.)
"A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed . . . ." 28 U.S.C. § 2244(b)(2). This is the case unless,
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2). Before filing a second or successive petition in the district court, "the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).
The court's own records reveal that petitioner previously filed a petition for writ of habeas corpus in this court attacking the same state court conviction and sentence that he seeks to challenge in this habeas proceeding. See No. CIV S-07-1035 GEB DAD P. In that previously-filed habeas action, the court dismissed petitioner's application as barred by the AEDPA statute of limitations. The Ninth Circuit has expressly held "that the dismissal of a habeas petition as untimely constitutes a disposition on the merits and that a further petition challenging the same conviction would be 'second or successive' for purposes of 28 U.S.C. § 2244(b)." McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). Here, petitioner has not obtained an order from the Ninth Circuit authorizing the district court to consider a second or successive petition as required to proceed with this habeas action. Therefore, this court lacks jurisdiction to entertain the now pending petition. See Burton v. Stewart, 549 U.S. 147, 152 (2007). Accordingly, the instant petition should be dismissed without prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals authorizing petitioner to file a second or successive petition.*fn3
Respondent has informed the court that Kathleen Dickinson is the Acting Warden of California Medical Facility where petitioner is currently housed and requests that the court to substitute Acting Warden Dickinson as respondent in this matter. Good cause appearing, the court will grant respondent's request.
IT IS HEREBY ORDERED that:
1. Respondent's August 10, 2010 request to substitute Acting Warden Kathleen Dickinson as respondent in this action (Doc. No. 12) is granted; and
2. The Clerk of the Court is directed to amend the docket to reflect that Acting Warden Kathleen Dickinson is the respondent in this action.
IT IS HEREBY RECOMMENDED that:
1. Respondent's August 10, 2010 motion to dismiss (Doc. No. 12) be granted;
2. Petitioner's application for a writ of habeas corpus be dismissed without prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals authorizing petitioner to file a second or successive petition; and
3. This action be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).